Delhi District Court
State vs Arvind Kumar Tripathi on 3 April, 2014
In the Court of Ms. Kaveri Baweja
Additional Sessions Judge Special FTC - 2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 58/2011
Unique ID No. : 02401R0432182011
State versus Arvind Kumar Tripathi
S/o Sh. Shivji Tripathi
R/o Krishan Nagar Colony,
Pathipur Road, Akbarpur,
District Ambedkar Nagar,
(Uttar Pradesh).
Case arising out of:
FIR No. : 112/2011
Police Station : Paharganj
Under Section : 376/328/506 IPC
Judgment reserved on : 27.03.2014
Judgment pronounced on : 03.04.2014
JUDGMENT
Case of the Prosecution:
The case in hand was registered on the basis of complaint dated 05.07.2011 lodged by Complainant 'M' [name withheld to protect her identity]. As per the complainant, accused Arvind Kumar Tripathi was appointed as a Lawyer by them for a family matter.
In the month of September,2010 Arvind Kumar Tripathi came to Delhi and on account of personal engagements, her father had send the Prosecutrix to meet the accused. She went to meet him at his hotel i.e. Hotel Capital Residency, where one friend of accused was also present. She further alleged that upon reaching the aforesaid hotel, the friend of the accused left from there and accused Arvind Kumar Tripathi offered her a cold drink which was already kept there.
After consuming the same, she started feeling giddy and became semiconscious. Complainant 'M' further alleged that taking advantage of her said condition, accused established physical relations with her forcibly. Upon regaining her consciousness, the Prosecutrix started crying stating that she would disclose this incident to everyone, to which accused told her that he likes her and wanted to marry her. Upon asking his family details, accused told her that he is a divorcee and would marry her soon.
The Prosecutrix further alleged that for the last time in Delhi, accused establish physical relations with her against her wishes on 02nd April at Hotel Residency as she was under the influence of accused. She also alleged that on 01st and 02nd June, 2011 accused established physical relations forcibly at Chaarbagh (Lucknow) with her for the last time when she had gone to Lucknow for giving examination. On 03 rd June, 2011, she came to know from her reliable sources that accused is not a divorcee and had children too. She further alleged that the taking advantage of her condition accused had established physical relations with her and that she would not have surrendered herself to accused if she is aware that accused was not a divorcee. She also alleged that whenever she tried to contact accused, he used to threaten her from the mobile No.9953771907 of his brother Sushil Tiwari.
On the basis of said complaint of 'M', the present case under Section 376 IPC was registered against Accused Arvind Kumar Tripathi. Prosecutrix was got medically examined from LHMC and exhibits were seized thereafter. On the pointing out of victim, site plan was prepared. Statement of Prosecutrix under Section 164 CrPC was also got recorded. During the course of further investigation, Accused was arrested at the instance of the complainant on 06.07.2011 and his medical examination was got conducted. Disclosure statement of Accused was also got recorded and on the basis of further investigations, sections 328/506 IPC were also added thereafter. Upon completion of the investigation, charge sheet was filed before the court.
Charges:
After committal of the case and on the basis of material on record, Accused Arvind Kumar Tripathi was charged for offence punishable under Sections 376/506/328 IPC, the pleaded not guilty and claimed trial, when the charges were read over and explained to him Prosecution Evidence:
Complainant 'M' was examined as PW1. She deposed that she is doing the work of giving tuitions to children and sometimes she also work as a temporary teacher in Schools. PW1 further deposed that her bhabhi 'S' (name withheld) had filed a case under Domestic Violence Act against her parents, her brother and herself which is pending in a court at Ambedkar Nagar, UP and the accused Arvind Kumar Tripathi, who is lawyer by profession, was engaged by her father to defend them in the aforesaid case. She correctly identified the accused in the court and further deposed that in November, 2010, the accused was called by her father who told him that he want to discuss something with him regarding the said case. Her father is a heart patient and due to this reason, he does not do much work and avoids going out. On receiving the call from the accused, her father telephoned her at the school, where she was teaching on that day and asked her to contact the accused as he wanted to discuss something about this case. Prosecutrix PW1 called the accused on his mobile phone and accused asked her to meet him at Hotel Capital Residency at Paharganj, where he was staying along with one friend. She further deposed that she went to meet the accused at the aforesaid Hotel and as soon as she reached there, his friend left from there. Accused offered her cold drink which was already lying in his room and after consuming the said cold drink, she became unconscious. She also deposed that taking advantage of her said state, accused established sexual relations with her. When she regained consciousness, she started crying and told him that she would disclose the entire incident. At this, the accused asked her not to disclose the incident to anyone as he likes her and wants to marry her. When she inquired about his marital status, he told her that he is a divorcee and would marry her soon.
PW1 further deposed that after this incident, accused visited Delhi on 23 occasions and he stayed in the same hotel. He called her again to that hotel and every time, he forcibly established physical relations with her by telling her that he will marry her. On 01.06.2011, she went to Lucknow for her B.Ed. entrance exams and the form for the said post had been sent to her by the accused himself by post. The accused already reached Lucknow prior to her reaching there and had booked one room in a hotel at Charbagh near Lucknow Railway Station, where he again established sexual relations with her forcibly. While she was returning from Lucknow after her exam, she made a call on the mobile phone of the accused. PW1 was however not able to recall the mobile number of the accused at the time of her examination but she deposed that it might be saved in he mobile phone.
She further deposed that her phone call was attended by one lady and on inquiry she told her that she is the wife of the accused and her name is Shashi Prabha. Thereafter, she called on the other mobile phone number of the accused and when she told the accused that she have come to know about his marriage, he disconnected the phone. She returned to Delhi after which she started receiving calls from Sushil Tiwari, brother of the accused who threatened her not to take any legal action against the accused. He also told her that accused is a 'Gunda' and is well connected. The accused also started threatening her and her father by calling from different numbers.
PW1 also proved her complaint dated 05.07.2011 Ex.PW1/A lodged at PS Paharganj and that of her complaint made to DCP, West Distt. dated 04.07.2011 as Mark X. PW1 further deposed that after the arrest of accused at her instance vide arrest memo Ex.PW1/B, his brother Sushil and some other unknown persons used to call her and her father and threaten them and also asked them to compromise the matter. She also deposed regarding pointing out the places of incident i.e. Hotel Capital Residency at Paharganj, Delhi and the Hotel at Lucknow where the accused had raped her vide pointing out memo Ex.PW1/C. PW1 also identified her signatures on the statement recorded before the ld. MM when produced in the court and proved the same as Ex.PW1/D. She further deposed regarding giving of her undergarments to the police which were seized vide seizure memo Ex.PW1/E. The father of the Prosecutrix was examined as PW3. He deposed that his son got married in the year 2009, but his daughterinlaw made a false case in UP against his son and other family members. One of his distant relatives namely Pooranmashi introduced them to the accused Arvind Kumar Tripathi as an Advocate. They engaged accused to contest the aforesaid case filed against them by her daughterinlaw and he made payment of Rs.10,000/ to the accused, who obtained his signatures on few pages and also obtained four photographs of him and his daughterinlaw. PW3 correctly identified accused in the court and further deposed that he was advised by the accused that he should debar his son and his daughter inlaw from his property and also told him that he had already published a notice in the newspaper in this regard and that he regular paid the fee demanded by the accused at several occasions. He further deposed that about 89 months back, he received a telephone call of the accused informing him that he had come to Delhi and certain documents pertaining to the aforesaid case and remaining fee is required and accused asked him to come at New Delhi Railway Station. PW3 told him that he was not in a position to come there as his wife is seriously ill and he was present in the hospital. Then PW3 made a call to his daughter who was taking tuition classes in Punjabi Bagh and asked her to go to New Delhi Railway Station where accused had come. Thereafter, his daughter had gone to meet accused at New Delhi Railway Station. When he returned back to his home from hospital at about 88:30 PM, he found his daughter was sleeping and on the next day morning, his daughter told him that she was not well but did not tell him anything about this case at that time. PW3 also deposed that he came to know about this case when accused was apprehended by the police.
PW2 is Sh.Shiv Prasad, Manager of Hotel Capital Residency who brought the visitors register and guest register. He deposed that as per visitor register on 27.12.2010, at Srl. No.1215 as well as on 25.02.2011 as per entry No.1229, Prosecutrix 'M' came to the hotel to meet their guest namely Arvind Kumar who has taken Room No.107 in their hotel. He also proved the relevant entries as Ex.PW2/A and Ex.PW2/B respectively. PW2 further deposed regarding booking of a room made by accused and the Prosecutrix on 29.11.2010, 27.12.2010, 25.02.2011 & 02.04.2011 vide separate entries and also proved the same as Ex.PW2/C, Ex.PW2/D, Ex.PW2/E and Ex.PW2/E respectively. He also deposed that at the time of booking of the room for the aforesaid dates, photocopies of Voter ID card of the accused and the Prosecutrix were given.
Whereas PW4 is Arvind Kashyap an official of Hotel Geet Palace at Chharbagh, Lucknow. He deposed that on 06.07.2011 some police persons along with one girl came to hotel Geet Palace at Chharbagh, Sabzi Mandi, Lucknow where she was working as Manager and made enquiries about the visit of that girl to their hotel on 01.06.2011. He further deposed that as per their record, the said girl visited their hotel along with the accused A.K.Tripathi on 01.06.2011 at abut 9:50 PM and stayed in their hotel till 02.06.2011 at 9 PM and as per entry No.1137, the girl made entry as Manyata. PW4 proved the photocopy of the said entry as Ex.PW4/A. He also deposed that the accused had given photocopy of his voter ID card as ID proof.
PW5 is Ms.Tyagita Singh, learned MM, who proved the factum of having recorded the statement of the Prosecutrix on 08.07.2011 and proved the same as Ex.PW1/D. PW6 is Dr.Indira Prasad who had medically examined the Prosecutrix on 05.07.2011 and proved the MLC prepared by her as Ex.PW6/A. PW12 is Sh.Kaushik Ghoshal, Nodal Officer from Vodafone, Lucknow, UP, who produced the Call Detail Record for the period 01.11.2010 to 02.06.2011 of mobile No.09565233185 and proved the same as Ex.PW12/A. He also proved the certificate under Section 65 of Evidence Act as Ex.PW12/B and copy of CAF along with ID Proof as Ex.PW12/C and Ex.PW12/D respectively.
PW13 is Sh.Israr Babu brought the summoned record i.e. Original Customer Application Form of Mobile No.7838842752 in the name of Prosecutrix 'M' along with ID Proof and proved the same as Ex.PW13/A and Ex.PW13/B respectively. He also brought the Call Detail Record of the aforesaid mobile number for the period 01.11.2010 to 02.06.2011 and proved the same as Ex.PW13/C (Colly.). He further proved the copy of the Certificate under Section 65B Evidence Act as Ex.PW13/D. PW13 also brought the summoned record i.e. Original Customer Application Form of Mobile No.9953771907 in the name of Rakesh Kumar S/o Sh.Rajpath Pandey along with ID Proof and proved the same as Ex.PW13/E and Ex.PW13/F respectively. He also brought the Call Detail Record of the aforesaid mobile number for the period 01.11.2010 to 02.06.2011 and proved the same as Ex.PW13/G (Colly). He further proved the copy of the Certificate under Section 65B Evidence Act as Ex.PW13/H. Remaining witnesses pertain to the investigation which include Duty Officer HC Balwant (PW10) who recorded the FIR of this case and proved the computerized copy of the same as Ex.PW10/A. Whereas PW8 is L/Ct.Rekha who deposed regarding taking of the Prosecutrix 'M' to the LHMC hospital for her medical examination on 05.07.2011 and handing over of the sealed parcels received from the hospital to the IO, who seized the same vide seizure memo Ex.PW8/A. PW7 is MHC(M) HC Mahipal, who deposed regarding receiving of the sealed pulandas in the malkhana on 15.07.2011 & 08.07.2011 vide entries at Srl.Nos. 3044 and 3050 in register No.19 and proved the same as Ex.PW7/A and Ex.PW7/B respectively. He further deposed regarding receipt of FSL result from FSL, Rohini on 03.02.2012 from ASI Sushila and making entry of the in Column No.7/8 of register No.19.
PW11 is Ct.Anand Kumar who deposed regarding taking of the three sealed pulandas and one sample seal from the malkhana vide RC No.75/21, depositing of the same at FSL, Rohini on 15.07.2011 and handing over the receipt of FSL to MHC(M) thereafter.
PW9 is HC Jagdev who deposed regarding receiving of the rukka on 05.07.2011, getting registration of the case FIR, handing over the copy of the FIR to the IO, collection of the two pages from the Manager of Hotel Capital Residency, main Bazar, Paharganj vide seizure memo Ex.PW2/A, going to Lucknow on 06.07.2011 along with Insp.Subhash Kumar, W/ASI Sushila and Prosecutrix, where Prosecutrix led them to hotel Geet Palace and pointed out the hotel and room No.104 of the said hotel claiming that accused has also established physical relations in that room.
He further deposed regarding preparation of the pointing out memo Ex.PW1/C and collecting of the entries pertaining to a stay with accused in the same hotel along with photocopies of the Voter ID Card of the accused which was given as ID Proof at the time of taking room in the said hotel and taking the same into police possession vide memo Ex.PW9/A. PW9 further deposed regarding arrest of the accused on 07.07.2011 at the instance of the Prosecutrix vide arrest memo Ex.PW1/B, preparation of his personal search memo, recording of his disclosure statement (Ex.PW9/B), taking of the accused to LHMC for his medical examination, collection of the sealed parcel with the seal of the hospital along with sample seal and seizure of the same vide seizure memo Ex.PW9/C. PW14, IO/Insp. Khemendra Pal Singh is the first IO who conducted the investigation of this case. He deposed regarding lodging of the complaint made by the Prosecutrix on 05.07.2011 at PP Sangatrshan, PS Paharganj against the accused Arvind Kumar Tripathi, getting recorded the FIR of the instant case, getting the prosecutrix medically examined at LHMC hospital, collection of the exhibits from the hospital, seizing of the same vide Ex.PW8/A, visiting the place of the alleged incident i.e. the hotels at the instance of the Prosecutrix at Delhi and Lucknow and collection of the exhibits from there and seizure of the same.
PW14 further deposed regarding arrest of the accused at the instance of the Prosecutrix vide arrest memo Ex.PW1/B, conducting of his personal search vide memo Ex.PW14/C, recording of his disclosure statement and recording of the statements of the witnesses under Section 161 Cr.PC. PW14 further deposed that as further investigation of this case was handed over the ASI Sushila, he accordingly handed over the file to her for further investigation purposes.
PW15 is ASI Sushila (IInd IO) to whom further investigation of this case was assigned. She deposed regarding her visit to the Lucknow along with Insp.Subhash Chand, SI K.P.Singh, HC Jagdev and Prosecutrix for investigation on 06.07.2011 and later on to Akhbarpur, Ambedkar Nagar at the house of accused, where accused was arrested at the instance of the Prosecutrix, recording of disclosure statement of the accused, conducting of the personal search memo and recording of his disclosure statement (Ex.PW9/B).
PW15 further deposed that after the investigation was assigned to her, she got the Prosecutrix medically examined at LHMC Hospital vide MLC Ex.PW15/A and collected the sealed pulanda with sample seal and seized the same vide seizure memo Ex.PW9/C. PW15 further deposed regarding her visit to the Hotel Capital Residency on the pointing of the Prosecutrix vide pointing out memo Ex.PW15/B and also getting recorded the statement of the Prosecutrix under Section 164 Cr.PC before the learned MM. This witness further deposed that the Prosecutrix produced her blue colour underwear with black lines which she seized vide seizure memo Ex.PW1/E and deposited the same in the malkhana and recording of the statements of the witnesses under Section 161 Cr.PC.
PW15 also deposed regarding the collection of the CDRs of the moble phones of accused Arvind Kumar Tripathi and the Prosecutrix 'M' and placing the same on file and after completion of the investigation, filing of the charge sheet in the court. She further correctly identified the case property when produced before her in the court. Plea of the Accused:
The entire incriminating evidence was put to the accused in his statement recorded under Section 313 Cr.PC. Accused pleaded innocence stating that he has been falsely implicated in this case. He further stated that the father of the Prosecutrix had a property dispute with his brothers. He extended all possible help and the property dispute was resolve. Sh.Ram Milan and all his family members including the Prosecutrix also visited his house at that time. Accused further stated that they used to visit his house frequently and sometimes stay there at night as there was lack of proper transport in the area. Gradually, he became close with the prosecutrix and they started talking on phone regularly and the Prosecutrix accompanied him to Faizabad in May, 2010, where physical relations were established between them with her consent. He also stated that the Prosecutrix had got married in 2005 and her 'gauna' was performed in 2006. However, she left her matrimonial home after 12 days only due to some differences and thereafter she lived with her parents.
Accused further stated that everyone was aware of his relation with Prosecutrix. She was regularly meeting his family members and was aware of his marital status. She has falsely implicated him in this case at the instance of his rival advocates as he was Member of Bar Association. Defence Evidence :
The accused examined five witnesses, including himself in his defence. Besides himself, Accused examined his mother and his friend Gautam Verma in his defence. It is pertinent to mention that the testimony of DW4 cannot be read in evidence as the accused was not able to produce DW4 for the purpose of his crossexamination and accordingly DW4 was ordered to be dropped vide order dated 07.02.2014.
Smt.Krishanlali Tripathi, mother of accused appeared as DW2. She deposed that she know Mandhya who used to frequently visit their house along with her family members in connection with some property dispute. They used to consult her son who is an Advocate for their property dispute. She further deposed that at times, they used to even stay at their house at night. DW2 also deposed that the Prosecutrix was married but she do not know her husband and also do not know when she got married. The prosecutrix and her family had also attended the birthday party of the son of accused i.e. of her grandson along with Sarvan and Gautam.
DW2 further deposed that the Prosecutrix 'M' used to talk to her daughter namely Ritu on her mobile phone No.9379721727 and the children of accused used to address Prosecutrix 'M' as Bua whenever she used to visit their house. The Prosecutrix also used to talk to her daughter inlaw ie.. wife of the accused on her mobile phone No.8052481336. She even abused her daughterinlaw as she wanted accused to give divorce to his wife and marry her.
DW3 is Sh.Gautam Prasad Verma who is the childhood friend of the accused. He deposed that on 26.11.2009 on the occasion of birthday of son of accused, accused introduced him to the Prosecutrix, where she was present along with her family. He also deposed that the Prosecutrix also gave him some gifts for the accused. On 18.09.2010, he received telephone call of Prosecutrix who informed him that accused is coming to Delhi and she asked him to come to Old Delhi Railway Station. From there, he went to one hotel at Paharganj along with Prosecutrix and the accused. DW3 also handed over copy of his identity card at the reception of the hotel and thereafter he left both the Prosecutrix and accused in the hotel and went to his place of work.
DW3 further deposed that accused called him after some time and told him that they will go and watch a movie. After seeing the movie, DW3 returned to his house and when he called the accused at night, he told him that they have left the hotel and he have gone to Ramesh Nagar to the house of Prosecutrix. After some time, DW3 came to know about the arrest of the accused in this case and he contacted Prosecutrix to enquire about the same. The Prosecutrix told him that she wanted the accused to marry her after giving divorce to his wife and also asked him to get the matter compromised and demanded Rs.2.5 lakh for settling the matter.
The accused examined himself as DW5 and deposed that in May, 2009, the prosecutrix, her father, her mother, her brother and his wife came to his house to seek advise from him with regard to a property dispute which they were having with their relatives in respect of some land in Ibrahimpur. The property dispute was resolved. As the accused had helped them in the matter, they became close to him and used to seek his advice regarding various matters. DW5 further deposed that the family members of prosecutrix also used to stay in his house sometimes when they had to go to their native village as no means of transport was available in evening/late hours. He also used to help them financially sometimes.
DW5 further deposed that on 26.11.09 he had celebrated the 4th or 5th birthday of his son and the prosecutrix and her family members also attended the function. All his relatives and friends had also attended that function. Prosecutrix used to talk to his family members including his children, his wife and his mother and there were family terms between both the families.
DW5 also deposed that the bhabhi of the Prosecutrix had filed a complaint case against all the family members under Section 498 IPC in July, 2010. He was not representing them as their lawyer in that case. The lawyer of the accused has obtained information from RTI, as per which he was not the lawyer of Prosecutrix 'M' and her family in that case. Copy of said RTI information is Mark DW5/1. Both the brothers of prosecutrix were debarred from property by her father by publication in newspaper which are Ex. DW5/A and DW5/B respectively. The affidavit of father of Prosecutrix dated 20.5.11 regarding debarring of his sons was got notarized upon his identification as lawyer. The said affidavit is proved as Ex. DW5/C. Prosecutrix was in touch with all his family members and his friends including lawyers. The accused further mentioned the mobile numbers of his family members upon his deposition in the court.
DW5 further deposed that the first date of meeting with prosecutrix in Delhi is 18.9.10. He came to Delhi for the first time on 18.9.10 by Kafiyat Express which arrived at ODRS at about 8 AM. On that day, Prosecutrix and Gautam met him outside ODRS and then they proceeded somewhere in Paharganj. His friend Gautam accompanied both of them as accused was new in Delhi and was not well versed with location of Delhi. After reaching the hotel Capital Residency in Paharganj, Gautam Verma left them and again joined them at 2 PM. Accused and prosecutrix planned to see a movie and then they went to PVR Plaza, Connaught Place and watched movie 'Dabang' at matinée show having time 36 PM. After watching the movie, Gautam left from there and accused along with prosecutrix proceeded to the house of prosecutrix. Few distance before the house, prosecutrix left his company and advised him to call her father to take him to her house and after sometime, the father of the prosecutrix came and took accused to his house. Accused also stayed overnight at the house of prosecutrix.
DW5 further deposed that on next day morning, prosecutrix as per instructions of her father, again accompanied the accused for shopping purposes of family of accused as he was not well aware of markets of Delhi. Then on 19.9.10 in evening accused returned to his native place by aforesaid train. Before lodging of FIR, they met several times as per settled place and time according to their convenience.
DW5 also deposed that as prosecutrix was to appear in her B.Ed. examination on 02.6.11 in Lucknow, she called him to meet her in Lucknow despite of the fact that he was not willing to come Lucknow as on 03.6.11 there was examination of his sister. On 01.6.11 he went to Lucknow and made prosecutrix to appear in B.Ed. examination and asked her to go back Delhi so he can also returned back to his house to help his sister to appear in her examination. Prosecutrix proposed to stay on 02.6.11 and to leave on 03.6.11, but he denied her proposal due to aforesaid reasons and therefore, she became furious and both of them returned to their respective native places. DW5 also deposed that as she was well versed with his marital status and aware about his family, he had never make any promise to marry her. He had never forced her to come anywhere or forcibly committed any wrong act nor also at any point of time gave her any intoxicating substance. Thereafter, on 03.6.11 on the provocation of his rival advocates and also due to frustration she lodged false FIR against him.
Arguments, Analysis and Findings:
I have heard submissions of learned defence counsel as well as learned APP and have also gone through the detailed written arguments filed on behalf of accused.
It has been contended by learned defence counsel that the claim of the complainant that the accused was a lawyer in a case filed by her sisterinlaw against her family members is false. Reliance is placed in this regard on the copy of information obtained through RTI by the accused and brought on record as Mark DW5/1.
It was further argued by learned defence counsel that the allegation of the Prosecutrix that she was administered an intoxicating substance by the accused after mixing in her cold drink on 29.11.2010 is totally false.
It was contended that the testimony of the Prosecutrix to this effect stands disproved by the crossexamination of the PW2, Manager of Hotel Capital Residency, who deposed that on 29.11.2010, both accused and Prosecutrix arrived at their hotel simultaneously and also gave copies of their documents in support of their identity proof. He also deposed in his crossexamination that no cold drink was served by him to the accused on that day and he did not hear any noise of crying from the room of the accused.
It was further contended that the Prosecutrix admittedly stayed at hotel at Faizabad with accused from 08.12.2010 to 10.12.2010 and later at Lucknow from 01.06.2011 to 02.06.2011. It was contended that though the Prosecutrix deposed that she only met the accused in Lucknow on 01.06.2011, however, the record produced by PW4 Arvind Kashyap, Manager at Lucknow established that the accused and the Prosecutrix stayed at the said hotel at Lucknow from 01.06.2011 to 02.06.2011.
The next contention of the defence is that the Prosecutrix was admittedly married in her childhood when she was aged about 12 years. She also admitted in her crossexamination that she is aware that it is illegal to remarry during subsistence of the first marriage. Further, admittedly she was not divorced from her husband with whom she was married in her childhood. Learned defence counsel while relying upon the judgment of Hon'ble Supreme Court in 'Prashant Bharti vs. State' decided on January 23.09.2013 in Crl.Appeal No.175/2013 (Arising out of SLP (Criminal) No.1800/2009) argued the question of accused giving a false assurance of marriage to the Prosecutrix or the Prosecutrix acting on any such assurance of the accused, in these circumstances, does not arise at all.
It was further argued that the Prosecutrix was apparently in touch with the family and friends of the accused. She was well aware of the marital status of the accused and also attended the birthday party of child of the accused on 26.11.2009 and her claim that she was under the impression that accused is a divorcee, is totally false. Learned defence counsel, hence argued that the case of the Prosecution is totally false. The physical relations between the accused and Prosecutrix, if any, were consensual and there is no ground whatsoever to convict the accused for the charges framed against him and he is liable to be acquitted for the same.
Per contra, learned APP strongly argued that the testimony of the Prosecutrix PW1 remained unimpeached despite her lengthy cross examination with regard to the alleged incident of rape dated 29.11.2010. The Prosecutrix, though admitted, that she herself met the accused at hotel Capital Residency on that day, however, she subsequently deposed that she was intoxicated by the accused, who administered her some intoxicant in a cold drink and thereafter raped her taking advantage of her unconscious condition.
With regard to the marital status of the Prosecutrix, learned APP argued that it is an admitted position that the Prosecutrix was married in her childhood. She never lived with her husband and was not even aware of the full name of her husband. She also deposed before the court that her husband has remarried and she never tried to take divorce from him as he had already got married with some other girl. Learned APP hence argued that in these circumstances, the Prosecutrix who was aware that the accused who is an Advocate was probably under the impression that he would marry her as she did not consider herself married to the person to whom she was married in her childhood. The impression thus carried by the Prosecutrix throughout was that the accused would marry her as assured by him and thus believing upon his said assurance, she continued to establish physical relations with him till June, 2011 when she came to know about his marital status after talking to his wife on phone.
Learned APP further contended that the first incident i.e. dated 29.11.2010, can by no stretch of imagination, be said to be consensual in nature as the Prosecutrix was apparently intoxicated and then raped by the accused. Her subsequent conduct of continuing to meet the accused can also be due to the fact that once physical relations have already been established between her and the accused , she was under the belief that the accused who is a divorcee will marry her, as assured to her.
Learned APP further strongly argued that the accused has failed to bring on record any evidence by way of photograph etc. to establish that the Prosecutrix had attended the birthday party of his son on 26.11.2009 or that prior to 29.11.2009, she was aware of the marital status of the accused. Learned APP hence argued that the case of the Prosecution stands duly proved against the accused and submitted that the accused is liable to be convicted for the offences with which he is charged.
I have given thoughtful consideration to the rival submissions advanced before me. A perusal of the judgment of the Hon'ble Apex Court in Prashant Bharti (Supra) clearly reveals that assurance of marriage given to a girl who is already married, cannot be said to create an impression in her mind that the accused would marry her.
In the case in hand, as the marriage of the Prosecutrix was in subsistence at the time when accused establish physical relations with her on the assurance that he would marry her, the said assertion of the complainant/Prosecutrix is false per se and as such, unacceptable. It was only the complainant/Prosecutrix, who more than anybody else, was clearly aware of the fact that her marriage was in subsistence and accordingly, there was no question of anyone being in a position to induce her into a physical relationship under an assurance of marriage.
Although, there are catena of judgments to the effect that sole testimony of a rape victim is sufficient to hold the accused guilty, if her deposition is found to be credible and trustworthy, and it requires no corroboration.
At the same time, it is equally well settled law that the evidence of the Prosecutrix cannot always be accepted as a gospel truth. Reliance maybe placed on the judgment of Honble Supreme Court titled as Rajoo & Ors. vs. State of M.P., AIR 2009 SC 858, wherein it has been held as under:
"The evidence of prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth.
Additionally her statement can, at best, be adjudged on the principal that ordinarily no injured witness would tell a lie or implicate a person falsely. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved."
It has also been held in the judgment titled as Tameezudin @ Tammu vs. State of (NCT) of Delhi, 2009(12) SCALE that "In a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter."
In the light of the admission of the Prosecutrix PW1 that she was aware that she could not have remarried during subsistence of her first marriage and the fact that she had not taken any divorce from her first husband, I find myself inclined to accept the arguments of the defence that the Prosecutrix could not have been under any such impression that the accused would marry her even if her deposition is believed to the extent that she was not aware of the marital status of the accused till June, 2011. In other words, even if it is accepted that the accused concealed his marital status from the Prosecutrix, yet the Prosecutrix was herself aware that she being married, could not have remarried during the subsistence of her marriage.
At this juncture, it is also relevant to take note of the fact that as per PW1, on 29.11.2010 she realized upon regaining consciousness that she had been raped by the accused she started crying and upon this accused told her that he is a divorcee and assured her that he will marry her. Pertinently, even at that point of time, PW1 cannot be said to have been unaware of the fact that she was already married. Her testimony therefore, that she was assured by the accused that he would marry her, cannot be said to be a sufficient reason, for her for not taking action against the aforesaid act of the accused of raping her while she was in a state of intoxication. Not only did she not lodge any complaint against the accused for the incident dated 29.11.2010, rather she continued to meet him and establish physical relations with him on his subsequent visits to Delhi and other places, as testified by her, again on his assurance that he would marry her.
It is also pertinent to note that the Prosecutrix was aged about 27 years at the time of her first sexual encounter with the accused. She has deposed that before the court that she has done M.A. in Political Science and is working in Sarvodya Vidhyala and Sr.Secondary School, Sarswati Garden. Thus, apparently, the Prosecutrix is herself well educated and mature girl and could not have blindly believed such assurance of the accused that he would marry her, particularly when she was aware that she was herself married and her marriage was very much in subsistence.
The apparent conclusion which can be drawn from the above discussion is that the physical relations between the accused and the Prosecutrix after 29.11.2010 were established with her consent. The Prosecutrix knowing fully well that she was married, continued to meet the accused and stayed with him in various hotels and also established physical relations with him. The claim of the Prosecutrix that she acted so, on the assurance of the accused that he would marry her, cannot be accepted in the light of the above discussion.
Now coming to the specific incident of 29.11.2010, though the Prosecutrix PW1 has claimed that the accused offered her cold drink after consuming which she became unconscious and taking advantage of her said state, the accused raped her, I find myself unable to accept her testimony to this effect. Though, it is an admitted position that the Prosecutrix went to meet the accused in Hotel Capital Residency on 29.11.2010, however, except for the testimony of the Prosecutrix that she was intoxicated by the accused, there is no other evidence to this effect on record.
Also, I find it absolutely difficult to accept as to why the Prosecutrix would continue to meet the accused after 29.11.2010 if as per her claim she had been raped by the accused on 29.11.2010, after being intoxicated. This 'post 29.11.2010 conduct' of the Prosecutrix is completely unnatural and it is extremely difficult to accept that a girl who has been allegedly raped by some one after being intoxicated would continue to meet him and stay with him in various hotels, knowing fully well that she herself is married and her first marriage is in subsistence and she would continue to establish physical relations with the accused claiming that he had assured her that he would marry her.
Thus, from a complete reading of the evidence on record in its totality, I find that the claim of the Prosecutrix cannot be believed. I may hasten to add at this juncture even at the cost of repetition, that I am conscious of the various pronouncements of the Superior Courts to the effect that the sole testimony of the Prosecutrix can be acted upon to convict the accused for offence under Section 376 IPC, provided her testimony is found credible and trustworthy. In the present case, however, the conduct of the Prosecutrix, particularly her own admission that she could not have remarried during subsistence of her first marriage, makes me disbelieve her entire claim. The testimony of the Prosecutrix cannot be said to be credible and free from blemishes and the accused in these circumstances is, in my opinion, certainly entitled to benefit of doubt. Also, as discussed hereinabove, the entire incident of 29.11.2010 as deposed by the Prosecutrix cannot be accepted.
In the light of the foregoing discussion, accused Arvind Kumar Tripathi S/o Sh.Shivji Tripathi is hereby acquitted of the charges on which he has been facing trial in the present case. His Bail bonds stand cancelled. Surety discharged. File be consigned to record room.
Announced in the Open Court on 03.04.14 (Kaveri Baweja)
Additional Sessions Judge Special FTC2 (Central) Tis Hazari Courts: Delhi.